NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC PEREYRA-ROJAS, No. 21-1199
Agency No.
Petitioner, A200-551-937
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2023**
San Francisco, California
Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.
Eric Pereyra-Rojas petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of his appeal of the Immigration Judge’s (“IJ”) final
order of removal. Because the parties are familiar with the facts of this case, we
recite them only as necessary for the disposition of this petition. We have
jurisdiction, see 8 U.S.C. § 1252, and we deny the petition.
1. For the first time in these proceedings, Pereyra-Rojas challenges
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the adequacy of the notice to appear. Although the exhaustion requirement in
8 U.S.C. § 1252(d)(1) is not jurisdictional, Santos-Zacaria v. Garland, 143 S.
Ct. 1103, 1110 (2023), the exhaustion requirement is mandatory if a party
timely urges us to apply it, Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th
Cir. 2023). Because the government timely raised § 1252(d)(1), Pereyra-Rojas’s
challenge to the adequacy of the notice to appear is not properly before us.
2. Pereyra-Rojas, through counsel, waived an explanation of his
procedural rights at the master calendar hearing. He now argues that the IJ
should have explained to him his apparent eligibility for pre-conclusion
voluntary departure. An IJ may, in some situations, question an alien directly to
“confirm he understands the legal consequences of his decisions. But those
circumstances typically involve an applicant who is proceeding pro se. On the
other hand, we typically allow IJs to rely on representations by counsel.”
Troncoso-Oviedo v. Garland, 43 F.4th 936, 942 (9th Cir. 2022) (cleaned up).
The IJ was entitled to rely on Pereyra-Rojas’s attorney’s waiver of an
explanation of Pereyra-Rojas’s procedural rights.
3. Pereyra-Rojas, through counsel, conceded that his conviction for
embezzlement, Cal. Penal Code § 503, was a crime of moral turpitude that
barred cancellation of removal and post-conclusion voluntary departure. See de
Rodriguez v. Holder, 724 F.3d 1147, 1152 (9th Cir. 2013) (explaining that an
alien’s concessions “are binding” where “there is no possibility that [the alien]
mistakenly conceded removability based on a now-questionable rule of law”
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(distinguishing Huerta–Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.
2003))).
4. The IJ analyzed Pereyra-Rojas’s proposed particular social groups
(“PSGs”) under the specific facts of this case, see Diaz-Reynoso v. Barr, 968
F.3d 1070, 1086 (9th Cir. 2020), by examining the documents he submitted
regarding country conditions in Peru1 and by concluding that those documents
did not prove that his proposed PSGs are sufficiently distinct or particular in
Peru. The IJ further concluded that Pereyra-Rojas did not prove a likelihood of
future persecution “on account of” his membership in any such PSG, which is
consistent with a determination of whether membership in a PSG is “a reason”
for persecution, see Barajas-Romero v. Lynch, 846 F.3d 351, 357–60 (9th Cir.
2017).
5. The record does not compel the conclusion that Pereyra-Rojas will
more likely than not be tortured with the acquiescence of government officials if
removed to Peru, as is required to obtain relief under the Convention Against
Torture. Garcia-Milian v. Holder, 755 F.3d 1026, 1033–35 (9th Cir. 2014).
PETITION DENIED.
1
Neither the documents cited by the IJ nor any other documents submitted by
Pereyra-Rojas mention persecution of Peruvian deportees or Pereyra-Rojas’s family,
which were the two proposed PSGs in which Pereyra-Rojas claimed membership.
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